The application of Swiss law in doping cases before the CAS and the Swiss Federal Tribunal

The Court of Arbitration for Sport (CAS) was established in 1984 by the International Olympic Committee (IOC) in order to create a supreme instance for sports disputes, away from the jurisdiction of State Courts.[1] After a landmark decision rendered by the Swiss Federal Tribunal (SFT) in 1993 in the widely-known Gundel case,[2] the CAS proceeded to a series of reforms in order to become an independent arbitral institution, as confirmed by a subsequent SFT judgment.[3] As per Article R28 of the CAS Procedural Rules of the Code of Sports-related Arbitration (CAS Code), the seat of CAS arbitration is in Switzerland, notwithstanding where the hearings are held.[4] This has the practical consequence that CAS proceedings are imperatively governed by the Swiss law of arbitration.

The World Anti-Doping Agency (WADA) is also a foundation under Swiss private law and is based in Lausanne, Switzerland. In addition to WADA, the vast majority of the international federations that have adopted the WADA Code (WADC) are also domiciled in Switzerland. Under the relevant provisions of the WADC, appeals against doping disputes involving international-level athletes/ international events are brought before the CAS in Lausanne, Switzerland. WADA and other international organisations have also the right to appeal against doping-related decisions rendered by first instance bodies to the CAS without the need to exhaust internal remedies.[5] Once the CAS award is rendered, the only way to challenge the award is before the SFT for the reasons exhaustively enumerated in the Swiss Private International Law Act (PILA).[6]

This article aims to highlight the importance that Swiss law plays in both the procedure and the merits of doping-related cases, through concrete examples at the different stages of the anti-doping proceedings before the CAS and before the SFT. Specifically, it looks at:

Application of Swiss law to the arbitration in doping cases (lex arbitri)

Swiss law when determining the arbitrability of a dispute & the jurisdiction of CAS in doping-related cases

Independence & impartiality of arbitrators in doping-related cases

The parties’ right to be heard and the right to equal treatment

Violation of public policy in doping-related cases

Application of Swiss procedural law to doping-related procedures before CAS: evidence, suspension of the CAS proceedings and provisional measures

Application of Swiss law to the merits of a doping case

Specific provisions of Swiss law & general principles applicable to doping cases

LawInSport is an independent publisher used by sports lawyers, sports business executives and administrators, athletes and support personnel, academics and students to stay informed of the latest legal issues and developments from the world of sport. It is our mission to improve the accountability, transparency and standard of the administration and governance of sport and the understanding of the law.

Thank you for considering becoming a member of LawInSport, supporting independent media and the promotion well researched, reference and accessible legal information that contributes to greater transparency and accountability in the sport and legal sectors.

Copyright notice

Th​is work was written for and first published ​on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport​ Ltd​. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal​ use​ provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work ​owned by parties other than​ ​LawInSport must be honoured.

About the Author

Despina is a qualified lawyer with many years of experience in international sports law and arbitration and the founder of SportLegis, a highly specialized international sports law practice based in Lausanne (Switzerland). She is an Accredited Mediator and a Fellow of the Chartered Institute of Arbitrators (FCIArb). She sits as arbitrator in international arbitrations administered by Sport Resolutions (UK) and is a member of the Doping Hearing Panel of the International Powerlifting Federation. Despina served as Managing Counsel at the Court of Arbitration for Sport (CAS) for nine years, where she was responsible for the drafting of legal opinions, mediation proceedings, the scrutinizing of CAS awards and appeals to the Swiss Federal Tribunal.

This email address is being protected from spambots. You need JavaScript enabled to view it.

Antonio Rigozzi is the partner in charge of the sports arbitration practice at Lévy Kaufmann-Kohler. He has extensive arbitration, litigation and dispute resolution experience across all the main areas of sports law, in a wide array of sports including football, Formula 1, sailing, athletics, ice hockey, swimming and cycling. As counsel, he represents and advises athletes, teams and sports-governing bodies before the CAS, the BAT and the Swiss courts.

This email address is being protected from spambots. You need JavaScript enabled to view it.